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Subcontractor vs Employee vs Owner Operator vs Statutory Employee


Employee vs Subcontractor IRS Rules

This subcontractor vs employee determination question has made a comeback in blogs and publications that I have read over the last few weeks.  It has to do with the classification of employees or non-employees for Workers Compensation while on the job.

Vector Graphic of Subcontractor Employee

I had posted previously on the IRS rules for a subcontractor.  Feel free to use the search box to find the post Most courts, Departments of Insurance, and State Rating Bureaus have all followed the IRS rules.  

The issue at hand is the amount of control you have over a person while on the job as to whether they are an employee, subcontractor, or statutory employee.  There is a bit of a grey area on how to classify the employees.   

Recently a South Carolina court ruled that a material hauler was a statutory employee and had to apply for Workers Compensation benefits and could not bring a lawsuit against the employer’s liability policy.  This is known as the exclusive remedy doctrine for Workers Compensation claims.  Once an employee receives benefits under Workers Comp, they can no longer look to sue the employer under different laws. 

Picture Of Subcontractor Group

The U.S. District Court, District of South Carolina dismissed a truck driver’s negligence and breach of implied warranty suit against a manufacturer. The driver was classified as a statutory employee and not a subcontractor.  Therefore, he could only seek relief under the Workers’ Compensation Act.  Under South Carolina law, where a worker’s activities satisfy any of three tests to make him a statutory employee of a contractor, his exclusive remedy for an on-the-job injury is workers’ compensation.

A driver for a hauling company was injured while disengaging landing gear on a truck at a manufacturer’s facility. According to the driver, he was struck in the face and the eye by a piece of the landing gear handle while attempting to disengage it. The hauling company was hired to provide transportation services on an as-needed basis.

The manufacturer moved to dismiss the driver’s negligence and breach of implied warranty suit, alleging the driver was its statutory employee, and thus could only sue under the Workers’ Compensation Act. The District Court agreed, finding the driver met the test for being the manufacturer’s statutory employee.

Picture Of Subcontractor In Office

The court explained that a subcontractor will be a statutory employee if his activity is considered part of the owner’s activity. This occurs if the activity meets one of three criteria: 

  1. Is an important part of the owner’s business or trade;
  2. Is a necessary, essential, and integral part of the owner’s business; or
  3. It has previously been performed by the owner’s employees.

The court found that because the manufacturer’s employees had previously performed the loading and hauling, the driver performed the same duties as the manufacturer’s employees. Further, the trailers that were towed were routinely loaded and unloaded by the manufacturer’s employees. Thus, he was considered a statutory employee, and workers’ compensation was the exclusive remedy for his injuries. 

I would say that the South Carolina Court had a very liberal definition of the rules for statutory employees.

Next Up – How Denying a Workers Comp claim can cost an employer big money.          

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Independent Contractors In South Carolina

South Carolina Independent Contractors The following is a great assessment of how a specific Workers Compensation Commission views independent contractors. Even if your company has no

James J Moore - Workers Comp Expert

Raleigh, NC, United States

About The Author...

James founded a Workers’ Compensation consulting firm, J&L Risk Management Consultants, Inc. in 1996. J&L’s mission is to reduce our clients’ Workers Compensation premiums by using time-tested techniques. J&L’s claims, premium, reserve and Experience Mod reviews have saved employers over $9.8 million in earned premiums over the last three years. J&L has saved numerous companies from bankruptcy proceedings as a result of insurance overpayments.

James has over 27 years of experience in insurance claims, audit, and underwriting, specializing in Workers’ Compensation. He has supervised, and managed the administration of Workers’ Compensation claims, and underwriting in over 45 states. His professional experience includes being the Director of Risk Management for the North Carolina School Boards Association. He created a very successful Workers’ Compensation Injury Rehabilitation Unit for school personnel.

James’s educational background, which centered on computer technology, culminated in earning a Masters of Business Administration (MBA); an Associate in Claims designation (AIC); and an Associate in Risk Management designation (ARM). He is a Chartered Financial Consultant (ChFC) and a licensed financial advisor. The NC Department of Insurance has certified him as an insurance instructor. He also possesses a Bachelors’ Degree in Actuarial Science.

LexisNexis has twice recognized his blog as one of the Top 25 Blogs on Workers’ Compensation. J&L has been listed in AM Best’s Preferred Providers Directory for Insurance Experts – Workers Compensation for over eight years. He recently won the prestigious Baucom Shine Lifetime Achievement Award for his volunteer contributions to the area of risk management and safety. James was recently named as an instructor for the prestigious Insurance Academy.

James is on the Board of Directors and Treasurer of the North Carolina Mid-State Safety Council. He has published two manuals on Workers’ Compensation and three different claims processing manuals. He has also written and has been quoted in numerous articles on reducing Workers’ Compensation costs for public and private employers. James publishes a weekly newsletter with 7,000 readers.

He currently possess press credentials and am invited to various national Workers Compensation conferences as a reporter.

James’s articles or interviews on Workers’ Compensation have appeared in the following publications or websites:

  • Risk and Insurance Management Society (RIMS)
  • Entrepreneur Magazine
  • Bloomberg Business News
  • WorkCompCentral.com
  • Claims Magazine
  • Risk & Insurance Magazine
  • Insurance Journal
  • Workers Compensation.com
  • LinkedIn, Twitter, Facebook and other social media sites
  • Various trade publications


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